113 F.

3d 1247
97 CJ C.A.R. 880
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

UNITED STATES of America, Plaintiff-Appellee,

v.
Leonard James TERNES, Defendant-Appellant.
No. 96-5223.

United States Court of Appeals, Tenth Circuit.

June 5, 1997.

Before BRORBY, EBEL and KELLY, Circuit Judges.

1ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Mr. Ternes is a federal prisoner and a pro se litigant. He filed a motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255 (1994).
The trial court denied the motion and Mr. Ternes appeals. We conclude Mr.
Ternes is not entitled to a certificate of appealability and we dismiss this appeal
as frivolous.

We must first decide if Mr. Ternes is entitled to a certificate of appealability.

See 28 U.S.C.A. 2253(c) (West Supp.1997). Mr. Ternes must make a
showing of the denial of an important federal right by demonstrating the issues
raised are debatable among jurists, that a court could resolve the issues

differently, or that the questions raised deserve further proceedings. Barefoot v.

Estelle, 463 U.S. 880 (1983); Lennox v. Evans, 87 F.3d 431 (10th Cir.1996),
cert. denied, 117 S.Ct. 746 (1997).
5

Reviewing the record on appeal, we find Mr. Ternes was convicted of armed
bank robbery and the carrying of a firearm during the commission of a crime of
violence. He filed a direct appeal and we affirmed in an unpublished opinion
dated October 29, 1993. Mr. Ternes' sole ground for relief is insufficiency of
the evidence. He states he did not previously raise this argument as he "has just
learned of the issues through legal research." At the crux of Mr. Ternes'
insufficiency argument is a joint stipulation agreeing the bank Mr. Ternes
robbed "was a financial institution insured by the Federal Deposit Insurance
Corporation." He argues this stipulation amounted to a stipulation of subject
matter jurisdiction and cites law holding the parties cannot agree to confer
jurisdiction upon a court. He further argues that by entering into this
stipulation, counsel provided ineffective assistance of counsel. The
Government raised procedural default due to Mr. Ternes' failure to raise this
issue on direct appeal.

Addressing Mr. Ternes' motion, the District Court stated:

Defendant has failed to articulate any cause and prejudice, or a miscarriage of

justice to excuse his failure to raise this claim on direct appeal. Even if the
claim were not procedurally barred, Defendant would not be entitled to relief.

On appeal, Mr. Ternes argues "[t]he District Court can only take original
jurisdiction ... if the crime was committed on property where said jurisdiction
was ceeded [sic] to the Government or owned by the Government."

Mr. Ternes' argument, which is not supported by authority, has no merit. This
issue is not debatable by jurists. Likewise, the trial court could not have
considered Mr. Ternes' argument absent both cause and prejudice or a colorable
showing of actual innocence. See United States v. Cook, 997 F.2d 1312, 1320
(10th Cir.1993). Mr. Ternes makes no such showing. Consequently we must
conclude this is a frivolous appeal under the meaning of 28 U.S.C.A. 1915(e)
(2)(B)(i) (West Supp.1997).

10

Mr. Ternes is not entitled to a certificate of appealability. The appeal is

DISMISSED.

This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3